AIDS-Related Discrimination

A note from TheBody.com: Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!

Employment

COMPLAINT FILED. When our original "John Doe" client applied to be a
teacher in the Chicago Public Schools, the school district application asked
his HIV status. After Doe confirmed that he has AIDS, his physician was
required to complete an HIV-specific questionnaire that inquired about Doe's
treatments, T-cell count, any opportunistic infections, as well as the
manner in which he was exposed to HIV. In addition, Doe was required to
submit to physical and psychiatric examinations every four months, a
requirement imposed only on employees with HIV.

Lambda demanded that the Chicago Board of Education eliminate
inappropriate health- related and HIV-specific inquiries and physical and
psychiatric monitoring of HIV-positive applicants. In response to our
demand, the board changed its official AIDS policy to eliminate the special
medical and psychological examinations and reporting imposed only on
HIV-positive applicants. However, Lambda later learned that the Board's
medical director has continued to include in the teacher application packet
a medical examination form with inquiries into the applicants health status
and history -- despite our subsequent request that the board further revise
its policy to conform with federal discrimination law and current medical
knowledge

In September 1996, in response to Lambda's continuing criticisms of the
application procedure for teachers, the Board amended its medical
information form to eliminate any specific reference to HIV. However, the
Board continues to require a physical examination and submission of medical
information (ranging from whether the applicant has "deformities" or
venereal disease to whether and why the applicant takes any medications) as
part of its teacher application process.

Despite Lambda's efforts to eliminate unlawful pre-employment medical
inquiries, and despite the repeated applications and calls to the Board of
Education by the case's "John Doe," who first applied for employment two
years ago and was forced to disclose his HIV status at that time, the board
has refused to process his application and instead has continued to require
additional medical information from our client. Consequently, in April
1997, Lambda filed a complaint in federal court against the Chicago Board of
Eduction as well as individuals responsible for the particular policies and
practices at issue.

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With assistance from Catherine Hanssens, Heather Sawyer is working with
cooperating attorney and Lambda Board member Cynthia Hyndman.

Bell v. Wells Fargo (California)

NEW CASE! This case challenges the way federal courts have dismissed
employment discrimination claims of people with HIV who have been fired or
forced from their jobs. Under the doctrine known as judicial estoppel,
courts have unfairly concluded that a terminated employee with HIV cannot
both claim disability benefits for being unable to work and file an
Americans with Disability Act claim that they should have been allowed to
keep their jobs with accommodations for their disability.

Andrew Bell, whose employer previously had granted the accommodation of
working one day a week at home, was meeting work requirements and receiving
favorable evaluations. However, his new managers revoked this accommodation.
Because of their insistence that Bell work on-site five days a week and the
refusal to continue to provide the reasonable accommodation previously
afforded him, Bell was unable to continue to hold his job. He qualified for
disability benefits because the California State program, like the federal
Social Security program, does not take into consideration the theoretical
possibility of an accommodation that would change the traditional structure
of a job and thus make continued employment possible for applicants. The
trial court concluded that Bell's receipt of disability benefits bars him
from also claiming, as required under California's Fair Employment and
Housing Act, that he is a person with a disability who is able to perform
the essential functions of the job at issue. Such rejections are an
increasing problem for people with HIV who either are refused necessary
alterations to their work schedules to accommodate their health needs, or
for those now on disability seeking to return to work, are inappropriately
denied employment because of their disability.

Lambda submitted an amicus brief in support of Bell's petition for a writ
of mandate with the California Court of Appeals in early February 1997. The
writ was denied, however, pending resolution of the remaining claims, the
entire case is likely to go to appeal, at which time Lambda will again offer
amicus assistance on this important issue. Catherine Hanssens, Heather
Sawyer, and Myron Quon worked on Lambda's brief.

Employment-Related Benefits

Peter Castellano, et al. v. City of New York (Federal Court, New York)

AWAITING DECISION. This case represents the first time the Second Circuit
Court of Appeals will consider whether former employees who qualify for
employment-related disability benefits have standing as "qualified
individuals with disabilities" to sue under the Americans with Disabilities
Act when these benefits are allocated in a discriminatory fashion. The
plaintiffs are a group of retired New York City police officers who allege
that the practice of providing supplemental payments in addition to the
basic pension benefits to police who retire after twenty years of service
but not to those who are forced to retire earlier because of a disability,
violates the ADA and the Rehabilitation Act.

While we took no position on the merits on these individuals' specific
claims, we participated because of the great significance of the issue raised.

Lambda joined in an amicus brief that included the American Foundation for
AIDS Research, the ACLU, and several other disabilities and employment
rights organizations. Catherine Hanssens provided editorial assistance on a
brief drafted by New York Lawyers for the Public Interest (NYLPI)
cooperating attorney Robert Schonfeld, and NYLPI attorney Ed Copeland.

Health Care Workers

Mauro v. Medical Center (Federal Court, Michigan)

AWAITING DECISION. William Mauro was a surgical technician for Borgess
Medical Center in Kalamazoo, Michigan. The medical center removed Mauro
from his position after rumors surfaced that he had HIV.

Mauro filed suit in federal court under the Americans with Disabilities
Act and the Rehabilitation Act. The district court granted summary judgment
in favor of the hospital. Despite the consensus that the risk of HIV
transmission from Mauro to patients was extremely small, the court concluded
that the presence of any risk, however remote, of Mauro transmitting HIV to
surgical patients made him a "direct threat" to these patients and therefore
not "otherwise qualified" to perform his duties as required by the ADA.
Mauro brought his case to the Sixth Circuit Court of Appeals.

Without explanation the court denied our motion to participate as amicus
almost eight months after it was filed along with our brief, and
subsequently denied our motion for reconsideration. Oral argument was held
in October 1996. Catherine Hanssens and former Lambda AIDS Project Staff
Attorney Barry Taylor prepared Lambda's amicus brief.

Insurance

Galanty v. The Paul Revere Life Insurance Company (California)

APPEAL FILED. This case attacks insurance industry practices that seek to
deny disability benefits to people with HIV.

Mark Galanty was HIV positive when Paul Revere sold him a disability
insurance policy. For the following five years, Galanty had no symptoms of
illness, continued to work, and paid premiums under the policy until a
problem with his hands caused him to stop working as a court reporter. The
policy included an "incontestability" clause (required by law in California)
that prohibits the company from denying claims for disabilities that start
more than two years after the policy is issued. To get around that clause,
the insurance company says Galanty's disabling condition was present when he
bought the policy, because he was HIV positive. But, Galanty was not unable
to work when he was simply infected with HIV. His disabling sickness is
AIDS, and it did not manifest itself or cause an inability to work until
five years after he bought the policy. While most agree that AIDS is a
manifestation of HIV, the insurance company here contends that HIV is a
manifestation of AIDS. Particularly in light of the ever-lengthening period
of health and productivity that those with HIV can expect, it is very
important to reverse the trend toward "disabling" those with HIV from
building future security. The lawsuit includes claims for breach of
contract, breach of fiduciary duty, fraud, violation of the California
Insurance Code, unfair business practices, and violation of California's
civil rights laws.

In December 1996, Los Angeles Superior Court Judge David Workman,
describing this as a question of "first impression" in California, granted
Paul Revere's motion for summary judgment, dismissing this case. We filed
our notice of appeal of the judge's order in March 1997, after a final
judgment was entered, and we are now preparing Galanty's opening brief on
appeal.

Jon Davidson is working on the case with cooperating attorneys Chris
Caldwell, Lee Michaelson, and former Lambda WRO Staff Attorney Mary
Newcombe, all of the Los Angeles firm of Hedges & Caldwell.

Doe v. Chubb Sovereign Insurance (Federal Court, California)

DISCOVERY ONGOING. This case raises the question of whether insurance
companies are subject to the anti-discrimination requirements of the
Americans with Disabilities Act, as well as whether an individual can be
denied life insurance because her partner is HIV positive.

Jane Doe and her husband John Doe simultaneously applied to the same
company for life insurance after the birth of their third child. When the
company had them both tested for HIV, John Doe tested positive, and Jane Doe
did not. But the insurance company not only denied John Doe's application
for life insurance (permitted under California law), it also improperly used
his test results to deny Jane Doe's application, informing her that the
denial was based on her husband's "communicable" condition.

We filed suit in federal court on behalf of both Jane and John Doe. In
November 1996, Federal District Court Judge Vaughn Walker rebuffed Chubb's
efforts to have this case dismissed, issuing a landmark ruling that the ADA
does prohibit unjustified discrimination in insurance underwriting against
individuals who are associated with people living with HIV. We are now
actively engaged in discovery.

Jon Davidson is working on the case with Cooperating Attorney Timothy Cahn
of the Oakland, California, law firm known as Legal Strategies Group.

Public Accommodations

Baksh v. Human Rights Commission (Illinois)

NEW CASE! In this case, a dentist appeals the Illinois Commission on
Human Rights' ruling against him due to his refusal to treat, and subsequent
referral of, a patient with AIDS. In June 1996, the Commission issued its
decision against Dr. Baksh, finding that the referral of an HIV-positive
patient for services that he could have provided violated the Illinois Human
Rights Act. That ruling was significant in stating that the Act covers
dental and medical offices as places of public accommodation that cannot
discriminate against persons with disabilities.

Dentist Karim Baksh has appealed the Commission's ruling, arguing, among
other things, that dentist's are not covered by the Act because dental
offices are not places of public accommodation, and that his refusal to
treat an HIV-positive patient and referral of that patient to another dental
clinic was appropriate treatment and not unlawful.

Due to the significance of the ruling, Lambda and the Chicago Lawyers
Committee for Civil Rights Under Law, Inc. filed an amicus brief on behalf
of the patient, who died prior to issuance of the Commission's final ruling
and whose estate is represented by Roger Leishman of the ACLU of Illinois.
Heather Sawyer prepared the amicus brief.

Nicholas Knapp v. Northwestern University (Federal Court, Illinois)

PETITION FOR U.S. SUPREME COURT REVIEW PENDING. This case questions what
constitutes meaningful judicial review of a decision to exclude a person
with a disability from a service or program. The Seventh Circuit Court of
Appeals denied Knapp's request for rehearing en banc, and a petition seeking
review by the U.S. Supreme Court currently is pending.

Knapp was a star high school athlete who has a heart condition that
required him to have a febrillator implanted. After Northwestern University
banned him from its basketball team, he filed suit under the Rehabilitation
Act. After weighing the testimony of various medical experts, who disagreed
as to the likelihood of the harm to Knapp if he were permitted to play, the
district court ruled in Knapp's favor. On appeal, the Seventh Circuit
reversed, holding that in cases involving a risk of "serious harm or death"
courts must defer to a defendant's determination of the significance of the
risk, "regardless whether conflicting medical opinions exist."

This ruling affects the ability of disabled persons to reverse unwarranted
denial of participation in a broad range of essential services and
facilities. It is particularly significant to those living with HIV or
AIDS, who often are excluded from obtaining necessary medical treatment,
attending schools, or continuing to work based on defendants' overblown
concerns regarding the "significant" threat of future injury or harm that
they pose.

Lambda and Equip for Equality, Inc., a Chicago-based disability rights
organization, requested leave to file an amicus brief urging the Seventh
Circuit to reconsider its ruling, but the court denied the motion in
December 1996. In January 1997, the court also denied Knapp's petition for
rehearing. Knapp's attorneys subsequently filed his petition for certiorari
with the U.S. Supreme Court. Following the January 1997 denial of his
petition for rehearing, Knapp transferred to Northeastern Illinois
University, where he is eligible to pay basketball next season. Heather
Sawyer is working on this case with former Lambda AIDS Project Staff
Attorney Barry Taylor, now at Equip for Equality.

COMPLAINT FILED. When our client, John Doe, refused to submit to HIV
testing that was not medically necessary for his treatment, his previously
scheduled surgery was canceled and he was informed that Dr. Greenberg would
not operate until Doe had been tested. After considerable effort to clarify
the reasons for the testing, and after having consistently been told that
the testing was necessary to ensure the safety of Dr. Greenberg and his
staff, Doe contacted Lambda.

In negotiations with Dr. Greenberg, Illinois Masonic Medical Center, and
Humana Health Care Plans, Lambda requested that all parties provide
treatment to Doe without requiring or conditioning treatment on his
submission to unnecessary HIV testing and also requested written
confirmation of their policies regarding HIV testing. In response to
Lambda's request, Dr. Greenberg, Illinois Masonic, and Humana Health Plans
indicated that they would treat Doe in the future but refused to clarify
their policies and practices regarding HIV testing generally.

To ensure that neither John Doe nor any other patient would be forced to
undergo unnecessary HIV testing as a precondition to receiving medical care
in the future, Lambda filed a complaint with the Department of Justice in
May 1997.

Heather Sawyer is working on this matter.

Patient Autonomy: The Right to Refuse Treatment, the Right to Die

AWAITING DECISION. Argument was held in the U.S. Supreme Court in January
1997 in these two cases which invalidate state laws which criminalize
physician-assisted suicide when requested by competent, terminally ill patients.

In March 1996, the Ninth Circuit Court of Appeals, sitting en banc in
Compassion in Dying v. State of Washington (now titled State of Washington
v. Glucksberg), issued a ground- breaking decision which is extraordinary in
its depth and eloquence. In the first federal court decision of its kind,
the appeals court concluded that there is a constitutionally protected
liberty interest in determining the time and manner of one's own death. It
then concluded that a Washington state law prohibiting physicians from
prescribing life-ending medication for use by terminally ill, competent
adults who wish to hasten their own deaths violates this fourteenth
amendment due process right.

The Second Circuit Court of Appeals, in Quill v. Vacco, rejected the
existence of a due process right to control the manner of one's death,
invalidating New York's prohibition against physician-assisted suicide on a
more narrow ground. Given that those in the final stages of illnesses who
are on life support systems are permitted to hasten their deaths by removing
life support, the court found no reason to prohibit those mentally
competent, terminally ill persons in the final stages of their illnesses who
are not on life support from hastening their deaths by other means. The
Second Circuit concluded that the criminal statutes violated the equal
protection rights of mentally competent, terminally ill persons in the final
stages of their illnesses.

Lambda had joined amicus briefs in both cases at the court of appeals.
Catherine Hanssens assisted Andrew Batavia of McDermott, Will & Emery with
preparation of a separate amicus brief filed in the U.S. Supreme Court in
these cases on behalf of Lambda, Gay Men's Health Crisis, and five prominent
persons with disabilities.

McIver v. Krischer (Florida)

NEW CASE! This case raises the issue of the right of a terminally ill man
with AIDS to request and receive physician assistance in expediting death.
Although it parallels the issue now before the U.S. Supreme Court in the
companion cases of Vacco v. Quill and State of Washington v. Glucksberg, the
plaintiff in this case based his claim on the Florida state constitutional
right to privacy.

Lambda joined in an amicus brief filed in the Florida Supreme Court on
behalf of disabled individuals, which focused in part on the evolution of
the disability rights movement and advocacy on behalf of people with
HIV/AIDS, as a struggle for equality and the right to autonomy in
decision-making; and the significant privacy interest of competent,
terminally-ill adults in controlling the intensely personal decision of when
suffering has become unbearable and meaningful life has come to an end,
without undue government interference.

Catherine Hanssens assisted Andrew Batavia of McDermott, Will & Emery on
an amicusbrief which also included the Florida AIDS Action Council, the PWA
Coalition of Broward County, Florida, and seven individuals living with
disabilities.

Criminal Law

State of Mississippi v. Marvin McClendon (Mississippi)

AWAITING DECISION. In October 1994, two gay men, Robert Walters and Joseph
Shoemaker, were shot and killed execution-style in Laurel, Mississippi.
Upon arrest, Marvin McClendon confessed to the murders, claiming that the
victims sought to sexually assault him. The court permitted the defense to
conduct post-mortem HIV tests on the victims, upon defense counsel's
insistence that positive results would be "equivalent to [the victims']
carrying a loaded gun."

Lambda filed a brief in support of the Jones County District Attorney's
pre-trial motion to exclude any evidence related to the victims' HIV status
or sexual orientation. At the February 1995 trial, the judge ruled that the
HIV status of the victims was relevant, and permitted defense counsel to
introduce as evidence the test results of the two men. Despite this, the
jury rejected the justifiable homicide defense and found the defendant
guilty on two counts of murder. The defendant lost his motion for a new
trial and subsequently appealed.

After consultation with Lambda, the Jones County district attorney filed
a cross-appeal on the admission of the victims' HIV test results. In
mid-December, the state attorney general filed its appellate brief, joined
by an amicus brief prepared by Catherine Hanssens.

State v. Jimmy Bird (Ohio)

APPEAL ALLOWED BY OHIO SUPREME COURT. In 1993, Jimmy Bird was arrested
for disorderly conduct. During the arrest, he allegedly spit on one of the
police officers; Bird claims he was maced and that the spitting was
involuntary. On the advice of counsel, he pleaded no contest to the charge
of felonious assault, which the court accepted on the prosecution's
assertion that the spit of an HIV-positive person is a "deadly weapon." Bird
received a three-to-15 year sentence. He was later paroled following a
letter to the sentencing judge from Lambda on the inappropriateness of the
sentence, but because of a subsequent arrest, parole was revoked. To date
he has served two years of the original sentence for spitting.

In support of Bird's request that the Ohio Supreme Court hear an appeal of
his case, Lambda filed an amicus brief focusing on the current state of
medical knowledge on the risk of HIV transmission through spitting (i.e.,
safely characterized as no quantifiable risk), and arguing that a conviction
such as Bird's cannot stand when the prosecution has failed to allege
sufficient facts (in this case, actions that pose any threat of serious
bodily injury) to establish the essential elements of the crime with which a
defendant has been charged. In May, the court granted Bird's request to
appeal. Lambda will participate in further briefing of Bird's appeal before
the Ohio Supreme Court.

Lambda's brief in support of Bird's petition was prepared by Heather Sawyer.

Related Stories

A note from TheBody.com: Since this article was written, the HIV pandemic has changed, as has our understanding of HIV/AIDS and its treatment. As a result, parts of this article may be outdated. Please keep this in mind, and be sure to visit other parts of our site for more recent information!

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